Shillcutt v. Gagnon

• Decision Date: 27 August 1987
• Docket Number: No. 85-1432,85-1432
• Citation: 827 F.2d 1155
• Parties: 23 Fed. R. Evid. Serv. 1068 James B. SHILLCUTT, Petitioner-Appellant, v. John R. GAGNON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1155

827 F.2d 1155

23 Fed. R. Evid. Serv. 1068

James B. SHILLCUTT, Petitioner-Appellant, v. John R. GAGNON, Respondent-Appellee.

No. 85-1432.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1986.

Decided Aug. 27, 1987.

Jeanne L. Nowaczewski, Chicago, Ill., for petitioner-appellant.

David J. Becker, Asst. Atty. Gen., Bronson C. LaFollette, Atty. Gen., Office of the Atty. Gen., Madison, Wis., for respondent-appellee.

Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

We are asked to decide whether a racial comment uttered by a juror during jury deliberations violates a criminal defendant's constitutional right to an impartial jury. Because, under the facts of this case, we hold that the rule prohibiting impeachment of verdicts sufficiently protects the petitioner's constitutional right, we affirm the district court's denial of the petition for habeas corpus. 602 F.Supp. 1280.

I.

The state of Wisconsin charged Shillcutt, a black male, with soliciting prostitutes and keeping a place of prostitution in violation of Wisconsin law. The state's chief witness was a young white woman who testified that she gave Shillcutt her earnings from prostitution, and Shillcutt paid for her housing, food and drugs. At trial, the jury remained deadlocked after nearly six hours of deliberation, prompting the trial judge to further charge the jurors. Shortly afterward, the jury announced a guilty verdict. In the wake of the trial, one juror affiant revealed that during the final deliberations a white male juror had said: "Let's be logical. He's black and he sees a seventeen year old white girl--I know the type." Armed with this affidavit, Shillcutt moved for a new trial. After conducting a hearing, the trial court found the affidavit to be credible but denied the motion and imposed sentence. The Wisconsin Court of Appeals affirmed the judgment of conviction on the basis that the statement made during jury deliberations was not competent evidence under state law. A divided Supreme Court of Wisconsin affirmed. The federal district court denied Shillcutt's habeas corpus petition and Shillcutt now appeals that decision.

Shillcutt presents a number of issues for review, some for the first time. Shillcutt argues the racial comment made during jury deliberations violated his sixth amendment right to an impartial jury; the instruction given to the deadlocked jury denied him sixth and fourteenth amendment rights to a fair trial and due process; the tainted voir dire rendered the jury verdict a nullity; and the "totality of circumstances" constitutes a violation of his sixth and fourteenth amendment rights.

II.

Every criminal defendant in the state of Wisconsin is guaranteed the right to an impartial jury, Wis. Const. art. I, Secs. 5, 7; U.S. Const. amends. VI, XIV, and the prejudice of even one juror jeopardizes fulfillment of the right. United States v. Booker, 480 F.2d 1310, 1311 (7th Cir.1973). In alternative fashion, Shillcutt contends that the racial comment is "presumptively prejudicial," the fact the statement was made "undeniably establishes" that he was denied the right to an impartial jury, and recent pronouncements of the United States Supreme Court require this Court to do whatever is necessary to weed out juror prejudice. See, e.g., Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986).

According to the affidavit submitted after trial, one juror encouraged the others to be "logical" and to take notice that Shillcutt was black and the girl was white. Another juror responded by saying Shillcutt "wasn't capable of loving anybody." These comments were made only a short time before a formerly deadlocked jury submitted a guilty verdict. Shillcutt contends the statement was a racial slur which infected the jury process, violating his constitutional right to an impartial jury.

In denying the motion for new trial, the trial court stated: "[A]lthough [the statement] could be categorized as a racial slur, the court does not find by clear, satisfying evidence convincing proof that this information would be prejudicial to a hypothetical jury." Hearing Transcript at 16. Whether the statement was prejudicial made no matter to the Wisconsin Court of Appeals; it concluded a juror was not competent to testify about such a statement under Sec. 906.06(2) of the Wisconsin statutes and, therefore, any additional inquiry into prejudicial effect was foreclosed. State v. Shillcutt, 116 Wis.2d 227, 231, 341 N.W.2d 716, 717 (Wis.App.1983). The Supreme Court of Wisconsin affirmed the appellate court's holding, State v. Shillcutt, 119 Wis.2d 788, 350 N.W.2d 686 (1984).

Wisconsin statute Sec. 906.06(2) reads:

INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received.

This statute, like its counterpart in Federal Rule of Evidence 606(b), ¹ is essentially an accommodation between the policies that conflict when a juror affidavit concerning juror misconduct is used as the basis of a motion for new trial. "[T]he court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room." McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915). The general rule of incompetence has limited exceptions for juror testimony "on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Thus, the competency of the juror's testimony hinges on whether it may be characterized as "extraneous information" or as an "outside influence." The Wisconsin courts ruled it may not. As a result, the general rule of incompetence was enforced despite Shillcutt's claim that application of Sec. 906.06(2) fails to weed out juror prejudice and therefore denies him the constitutional right to an impartial jury.

Wisconsin courts apply a three-part test to the issue of verdict impeachment. The evidence brought to the trial court's attention must be examined to determine if it (1) is competent; (2) shows sufficient substantive grounds to overturn the verdict; and (3) shows resulting prejudice. State v. Poh, 116 Wis.2d 510, 515-16, 343 N.W.2d 108, 112 (1984); After Hour Welding, Inc. v. Laneil Management Co., 108 Wis.2d 734, 738, 324 N.W.2d 686, 689 (1982). Competency of evidence is governed by Sec. 906.06(2). According to the state appellate court, "[w]hen a state statute is modeled after a federal rule, [it] look[s] to the federal interpretation of the rule for guidance." State v. Shillcutt, 116 Wis.2d at 232, 341 N.W.2d at 718. On the basis of law under both the state and federal rules, the Wisconsin courts found that the juror testimony was not competent. There was no need, consequently, to consider the remaining two elements for verdict impeachment.

We are mindful of our limited role on this appeal. A federal court in habeas corpus proceedings may "not take the extraordinarily intrusive action of setting aside a state criminal conviction in the guise of due process review, simply because [it] disagree[s] with the state court's interpretation of state law." United States ex rel. Burnett v. Illinois, 619 F.2d 668, 671 (7th Cir.), cert. denied, 449 U.S. 880, 101 S.Ct. 229, 66 L.Ed.2d 104 (1980). Federal habeas review should consider only violations of the Constitution, laws or treaties of the United States. United States ex rel. Little v. Twomey, 477 F.2d 767, 770 (7th Cir.), cert. denied, 414 U.S. 846, 94 S.Ct. 112, 38 L.Ed.2d 94 (1973). We would not entertain an argument urging us to find that the Supreme Court of Wisconsin misconstrued state laws or rules of evidence. Rather, the proper role of the federal courts is to inquire whether the state court determination violated any federal constitutional or statutory right of the petitioner.

In this habeas suit, the federal district court held that under Federal Rule of Evidence 606(b) the jury verdict must not be impeached for the purpose of disclosing the allegedly prejudicial statement. Shillcutt v. Gagnon, 602 F.Supp. 1280 (E.D.Wis.1985). This decision finds ample support in the cases of other jurisdictions. In Smith v. Brewer, 444 F.Supp. 482 (S.D.Iowa), aff'd, 577 F.2d 466 (8th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978), where a juror allegedly mimicked the black defendant's manner of speaking with comments such as "you all," the Eighth Circuit agreed that evidence of the juror's antics should be inadmissible. In Martinez v. Food City, Inc., 658 F.2d 369 (5th Cir.1981), the Fifth Circuit held that one juror's view that the defendant "should be taught a lesson" was part of the subjective deliberation process of the jury and, therefore, not competent evidence. Another Fifth Circuit case, United States v. Duzac, 622 F.2d 911 (5th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980), stands for the view that testimony concerning jurors' prejudices is incompetent. "The proper time to discover such prejudices is when the jury...